[EL] The WI situation

[Mark Scarberry]

If the primary is a part of the way in which electors are chosen -- by
helping to determine which candidates will be on the November ballot under
rules set by Wisconsin for who will appear on the November ballot -- then
it could come within that clause. That does seem to be a bit of a stretch.

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*




On Mon, Apr 6, 2020 at 3:30 PM Jeff Hauser <jeffhauser at gmail.com> wrote:

> Morley's twitter thread had a really weird tweet in it:
> https://twitter.com/michaelmorley11/status/1247242785410945026
>
> I can't imagine how you can construe the Dem presidential primary as
> occurring "under the Presidential Electors Clause," which... is not about
> primaries.
>
>
>
> On Mon, Apr 6, 2020 at 6:24 PM Barry Burden <bcburden at wisc.edu> wrote:
>
>> There's not much to post at this point:
>>
>>
>> https://s3-us-east-2.amazonaws.com/wisconsinpublictv/wp-content/uploads/2020/04/2020AP608o2-Order-granting-orig-action-pet-and-injunction-04-06-20.pdf
>>
>> ------------------------------------------------------------------------
>> Barry C. Burden
>> Professor, Department of Political Science
>> Director, Elections Research Center (elections.wisc.edu)
>> University of Wisconsin-Madison
>> Twitter: @bcburden
>> Web: faculty.polisci.wisc.edu/bcburden
>> ------------------------------------------------------------------------
>>
>> ------------------------------
>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
>> behalf of Marty Lederman <Martin.Lederman at law.georgetown.edu>
>> *Sent:* Monday, April 6, 2020 5:12 PM
>> *To:* Pildes, Rick <rick.pildes at nyu.edu>
>> *Cc:* Election Law Listserv <law-election at uci.edu>
>> *Subject:* Re: [EL] The WI situation
>>
>> Wisconsin Supreme Court has reversed Evers's order by a partisan 4-2
>> vote.  If anyone comes across a copy of the order or opinion, please post.
>>
>> On Mon, Apr 6, 2020 at 3:27 PM Marty Lederman <
>> Martin.Lederman at law.georgetown.edu> wrote:
>>
>> Let me preface this by saying that I HAVE NO IDEA HOW WISCONSIN EMERGENCY
>> AUTHORITIES HAVE HISTORICALLY BEEN INTERPRETED AND EXERCISED.
>>
>> That said, Prof. Morley's two bases for suggesting that Evers acted w/o
>> authority don't seem, at least at first glance, entirely convincing.
>> First, he notes that a cognate provision expressly authorizes the Governor
>> to suspend the provisions of any *administrative rule* if strict
>> compliance would hinder disaster response--which according to Prof. Morley "strongly
>> suggests that 323.12(4)(b)'s general grant of authority doesn't include the
>> power to suspend/ignore *statutory* requirements."  Perhaps, but that's
>> hardly obvious from the plain face of 323.12(4)(b).
>>
>> Second, he writes that "many other similarly worded/structured
>> state-of-emergency laws *in other states* DO expressly confer authority
>> on governors to suspend state statutes or statutory deadlines during
>> declared emergencies."  And from that concludes that "the omission of
>> authority to suspend state laws from *Wisconsin*'s general state of
>> emergency statute is likely significant & intentional, and should be given
>> effect."
>>
>> Is this a common method of state statutory construction?  A broadly
>> worded statutory provision in State A should be construed not to convey
>> power X--even though it falls within the plain terms of the
>> provision--because it does not expressly name a power that *is *expressly specified
>> in other states' laws?
>>
>> Again, perhaps these two arguments are very strong under Wisconsin law--I
>> don't know.  But they aren't intuitively obvious.
>>
>> On Mon, Apr 6, 2020 at 3:09 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:
>>
>> Michael Morley, an expert on the power that Governors do and do not have
>> under state laws to suspend election laws in emergencies, has a series of
>> tweets here on the Wisconsin Governor’s action today:
>>
>>
>>
>> https://twitter.com/michaelmorley11/status/1247232619277934593
>>
>>
>>
>>
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>>
>>
>> --
>> Marty Lederman
>> Georgetown University Law Center
>> 600 New Jersey Avenue, NW
>> Washington, DC 20001
>> 202-662-9937
>>
>>
>>
>> --
>> Marty Lederman
>> Georgetown University Law Center
>> 600 New Jersey Avenue, NW
>> Washington, DC 20001
>> 202-662-9937
>>
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